About Me

I was previously a constitutional law and civil rights litigator and am now a journalist. I am the author of three New York Times bestselling books -- "How Would a Patriot Act" (a critique of Bush executive power theories), "Tragic Legacy" (documenting the Bush legacy), and With Liberty and Justice for Some (critiquing America's two-tiered justice system and the collapse of the rule of law for its political and financial elites). My fifth book - No Place to Hide: Edward Snowden, the NSA and the US Surveillance State - will be released on April 29, 2014 by Holt/Metropolitan.

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Tuesday, March 28, 2006

The fictitious Kyl/Graham "floor debate"

Today the Supreme Court will hear oral arguments in the case of Hamdan v. Rumsfeld. The Court will be called upon to determine--among other things--whether a provision in last year's Detainee Treatment Act ("DTA") effectively strips the Court of jurisdiction to hear Hamdan's case. The Government contends that it does and in support of this position, Republican Senators Lindsey Graham and John Kyl have filed an amicus brief with the Court.

This amicus brief argues that the legislative history of the DTA supports the Government's position. Specifically, the brief cites a lengthy colloquy between Senators Kyl and Graham themselves which purportly took place during a Senate floor debate just prior to passage of the bill. In the exchange, both Kyl and Graham suggest that the bill will strip the courts of jurisdiction over pending detainee cases such as Hamdan. But here's where the story gets interesting.

Apparently this entire 8 page colloquy--which is scripted to read as if it were delivered live on the floor of the Senate, complete with random interruptions from other Senators--never took place. It was inserted into the Congressional Record in written form just prior to passage of the bill.

Lyle Denniston at SCOTUSblog--who appears to have been the first to pick up on this juicy story last Thursday--noted that the authenticity of the floor debate was disputed by Hamdan's attorneys in their reply to the Government's brief. Hamdan's attorneys pointed out that the C-SPAN footage for Dec. 21, 2005--the date this debate supposedly took place--shows no sign of Senators Kyl or Graham (or, for that matter, the other Senators who appear in the record).

The problem is that Kyl and Graham's colloquy didn't actually happen on Dec. 21. It was inserted into the Congressional Record just before the law passed, which means that the colloquy did not alert other members of Congress to the views it contains. Inserting comments into the Record is standard practice in Congress. What's utterly non-standard is implying to the Supreme Court that testimony was live when it wasn't.

But that's exactly what Graham and Kyl appear to have done in their brief. In response to the contention by Hamdan's attorneys that the legislative history is meaningless because it was inserted into the record without debate, the brief states the following:

[T]he Congressional Record is presumed to reflect live debate except when the statements therein are followed by a bullet, indicating "statements or insertions which are not spoken by a Member of the Senate on the floor," or areunderlined, indicating that they are "words inserted or appended, rather than spoken, by a Member of the House on the floor."

And guess what, there's no bullet or underlining in the relevant part of the Congressional Record. The Kyl/Graham amicus brief also quotes various lines from the colloquy as evidence that it took place prior to the passage of the bill. It quotes Sen. Graham as saying: "I want our colleagues to know exactly what they will be agreeing to" (emphasis in original).

Bazelon even catches Senator Brownback's office in an apparent lie. Brownback makes a cameo in the scripted dialogue, asking if he "might interrupt" and ask a question. Bazelon writes:

I called Brownback's office to ask if he'd given this testimony live on the Senate floor. "Yes, it was live," an aide told me. I said that I'd been told otherwise by Senate staffers and mentioned the C-SPAN tape. "Let me call you back," the aide said. She never did. Nor did Kyl or Graham's press reps.

Now I realize that the Congressional Record is often not what it appears to be. Much of it is inserted at the last second. And even when statements are delivered live, there are often no other senators in the chamber. But this particular episode appears to go well beyond the normal charade.

What we have are two Senators falsely suggesting--to the highest court in the land--that an imaginary dialogue inserted in the Congressional Record was in fact a live floor debate which reveals the definitive intent of Congress. If all this is true--and it certainly appears to be--Senators Kyl and Graham have some explaining to do.